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HomeMy WebLinkAbout83-36 1 4 6 ? 8 10 12 14 ~5 16 1'/ 18 19 2O 21 22 23 24 25 26 28 RESOLUTION NO. 83-36 RESOLUTION OF CITY COUNCIL OF CITY OF UKIAH AUTHORIZING ESCROW AGREEMENT FOR DEPOSIT OF CONTRACT RETENTION FUNDS - WASTEWATER TREAT- MENT PLANT PROJECT, W.R. THOMASON, INC., CONTRACTOR WHEREAS, W. R. Thomason, Inc. entered into a construction contract with the City of Ukiah for construction of improvements to the Ukiah Wastewater Treatment Plant dated October 5, 1981; and WHEREAS, Terms of said contract and the Government Code of the State of California provide that Contractor at his option may deposit specified securi- ties with an Escrow Agent in lieu of City retaining funds under terms of the contract; and WHEREAS, W. R. Thomas has designated Wells Fargo Bank, N.A. as Escrow Agent for contract retention funds. NOW, THEREFORE: The City Council of the City of Ukiah does authorize and approve the Escrow Agreement attached hereto and authorize its Mayor and Clerk to execute the same on behalf of the City. PASSED AND ADOPTED this 17th day of November , 1982 by the following roll call vote: AYES: Councilmembers Feibusch, Kelley, Hickey, Myers, Riley NOES: None ABSENT: None MAYOR ATTEST: ~ITY CLERK GENERAL PROVISIONS TAXES - Escrow AQent is not to be concerned with any unpaid personal property sales tax or sales tax on equipment being sold unless otherwise specifically instructed herein. OTHER AuREE.~,,~ - Unless otherwise provided herein, Escrow Aoent is not to be concerned with any conditional sales contract, lease contract or security aQreement that ~lav affect the here- in referred to personal Property, and is not responsible for the delivery of'any papers Other . t~an described herein. Escrow Aqent is not a party' to, or bound b,F any aareement which may De deposited unmer, evidenced by, or arise out of these Instructions. AGE~¢CY RESPO~¢SIBILITN- Escrow Aqent is to make no examination of the property nor of the title thereto. Escrow Aqent acts as a depositary only and is not responsible or liable in any manner w~atever for the sufficiency, correctness, Qenuineness or validity of an,,, instrument deDosited ~..itn it hereunder, or with respect to form or execution of the same, or ~he identity, authority, or right ot any Derson executing or depositing the same. DEFAULTS - Escrow Agent shall not be required to take or be bound by notice of any default of any person, or to take any action with respect to such default involvina any expense or l(~bility, unless notice in writing is qiven to the Escrow Agent at the'office above named, of such default by the undersigned or any ~f them, and unless it is indemnified in a manner satisfactory to it against such expense or liability. These Instructions shall not De subject to recision or modification except of receipt by Escrow Agent at the office above named of the written instructions of all of the parties hereto or their successors in interest. NOTICES - Escrow Agent shall be protected in acting upon any notice, request, waiver, consent, receipt or other paper or document believed by Escrow Agent to be signed by the proper party or parties. JUDGHENT - Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own willful misconduct, and Escrow Agent shall have no duties to anyone except those signing these instructions. COUNSEL - Escrow Agent may advise with legal counsel in the event of any dispute or question as to the construction of the foregoing instructions, or Escrow Agent's duties thereunder, and Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. DISAGREEHENTS - In the event of any disagreement between the undersianed or any of them, and/or the person or persons named in the foregoing instructions, and/or an~ other person, resulting in adverse claims and demands being made in connection with or for any papers, money or property involved herein or affected hereby, Escrow Aaent shall be entitled at its option to refuse to comply with any such claim or demand, so lo~a as such disaqreement shall continue, and in so doing Escrow Aaent shall not be or become liJble for damagJs or interest to the undersigned-or any of them or to any person named in the foregoing instructions for its failure or refusal to comply with such conflicting or adverse demands; and Escrow Agent shall be en- titled to continue so to refrain and refuse so to act until: 1. the rights of the adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of tile parties and the money, papers, and property involved herein or affected hereby; and/or 2. all differences shall have been adjusted by aqreement and Escrow Aqent shall have been notified thereof in writing signed by all of ~he persons interesteJ. 3. In the event of such disagreement, Escrow Agent in its discretion, may file a suit in interpleader for the purpose of having the respective rights of the claimants ad- judicated, and deposit with the court all documents and property held hereunder, and the Contractor agrees to pay all costs and counsel fees incurred by Escrow Agent in such action and said costs and fees be included in the judgment in any such action. FEES AND CHARGES - In the event that Escrow Agent performs any service not specifically pro- vioe~ nereinabove, or that there is any assignment or attachment of any interest in the subject matter of this escrow or modification thereof, or that any controversy arises hereunder, or that Escrow Agent is made a party to, or intervenes in, any litigation pertaining to this escrow or the subject matter thereof, Escrow Agent shall be reasonably compensated therefor and reimbursed for all costs and expenses occasioned thereby. Escrow ~oent shall have a first lien on the property and papers held by it hereunder for such compensation and expenses, and the Contractor agrees to pay the same, and to indemnify Escrow Agent against any loss, liability or expense incurred in any act or thing done hereunder. CA)JCELLATION - In the event this escrow is cancelled, the Contractor will nevertheless pay the escrow fee plus all costs and expenses of Escrow Agent. Notwithstanding anything in these instructions to the contrary, Escrow Aqent may, at his discretion, upon ten (10) days . written notice to' Contractor and City, resigfi from this escrow and shall be entitled to reim- bursement only for those costs and expenses incurred Dy Escrow Agent to the date of such re- .signation. Upon cancellation by the parties or resignation of the Escrow Aqent, after deduct- ing Escrow Agent's fee and/or costs and expenses, the balance of funds and ~ocuments shall be returned to the parties who shall have deposited the same. SIGNATURES - These instructions may be executed in counterparts, each of which so executed shall be deemed as original, irrespective of the date of its execution and delivery, and said counterparts together shall constitute one and the same instrument. THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTOOD AND AGREED TO THE TERIIS, PROVISIONS AND CONDITIONS CONTAINED HEREIN. W. R. Thomason Inc. City of Ukiah BY: B~: ~.lay6~ _ l) ' ~. Tno~ason, President - City of UKTan BY: 203 South School Street EiDert C. Lewey, Treasurer Ukian, CA 95482 P.O. Box 2249 (707) 462-2971 ?art~nez, C~ 94553 (ZlS' 22~-2720 ATTEST: ~ELLS FARGO BANK, N.A. Dated__ ~, Escrow LJff~cer DEPOSITS OF PERCENTAGE OF CONTRACT EARNINGS TO: WELLS FARGO BANK, N.A. Escrow Department 699 Contra Costa Blvd., 2nd Floor DATE: October 15, 1982 Pleasant Hill, CA 94523 ESCROW NO.: 9652 This Escrow Agreement entered into on October 15, 1982, by and among Wells Fargo Bank, N.A., hereinafter referred to as Escrow Agent, W. R. THOMASON, INC., General Engineerin~ Contractors · hereinafter referred to as Contractor, City of Ukiah hereinafter referred to as City. For the consideration hereinafter set forth, Contractor, Escrow Agent and City agree as follow: o Pursuant to Section 4590 of Chapter 13 of Division 5 of Title 1 of the Govern- ment Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retentions required to be with- held pursuant to the Agreement between Contractor and City dated October 5, 1981, ("Agreement"). When Contractor deposits securities as a substitute for contract retentions, the Escrow Agent shall notify the District within ten (10) days of said deposit. The market value of said securities at the time of said substi- tution shall be at least equal to the cash amount required to be withheld as retention under the terms of the Agreement. The securities shall be made payable to Wells Fargo Bank, N.A. as Escrow Agent for Escrow No. 9652 and shall designate Contractor as the beneficial owner. Eligible securities for substitution may be bank certificates of deposit issued by Wells Fargo Bank, N.A. with a maturity of 180 days or less, or any other security defined in Section 16430 of the ~ California Government Code. 3o 4° Contractor shall pay directly to Escrow Agent a fee for the expenses incurred by Escrow Agent in administering the escrow account, said amount and terms for payment to be determined by Escrow Agent. City shall deposit with Escrow Agent 5% (percent) of each progress payment for work performed pursuant to the Agreement. When Contractor deposits securities, and upon receipt of securities as described under Section 1 above, Escrow Agent shall draw an escrow check and pay Contractor 100% (percent) of said retention so deposited by the City. In the event Contractor fails to deposit the required securities into the escrow account, Escrow Agent shall draw an escrow check for only the amount of difference (if any) between the amount required to be withheld as retention as indicated, and the value of any securities held by Escrow Agent. Upon receipt of written notification from City certifying that the Agreement is final and complete; and the Contractor has complied with all requirements and procedures applicable to said Agreement, Escrow Agent shall release to Contractor all securities and monies on deposit less escrow fees and charges in the escrow account. The escrow shall be closed immediately upon disbursement of all monies and securities on deposit and payments of fees and charges. In the event securi- ties are released prior to maturity, a penalty may be assessed. City shall promptly and in writing notify Escrow Agent of any dispute or default arising under or relating to the contractual performance by Contractor. Upon receipt of such notification, Escrow Agent shall immediately convert all securities on deposit in the escrow account to cash and shall distribute such cash in the following manner: City shall receive an amount equal to the contract earnings required to be withheld as retention. 6o Contractor shall receive all funds in excess of the amount disbursed to City less fees and charges. Escrow Agent may rely on the written notification from City and City and Contractor shall hold Escrow Agent harmless from Escrow Agent's release and disbursement of the securities and money as set forth above. In witness whereof, the parties hereto have hereunto caused the presents to be duly executed by their proper officers first thereunto duly authorized the day and year set out on reverse side. DEPOSITS OF PERCENTAGE OF CONTRACT EARNINGS TO: WELLS FARGO BANK, N.A. Escrow Department 699 Contra Costa Blvd., 2nd Floor DATE: October 15, 1982 Pleasant Hill, CA 94523 ESCROW NO.: 9652 This Escrow Agreement entered into on October 15, 1982, by and among Wells Fargo Bank, N.A., hereinafter referred to as Escrow Agent, W. R. THOMASON, INC., General Engineering Contractors hereinafter referred to as Contractor, City of Ukiah hereinafter referred to as City. For the consideration hereinafter set forth, Contractor, Escrow Agent and City agree as follow: Pursuant to Section 4590 of Chapter 13 of Division 5 of Title 1 of the Govern- ment Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retentions required to be with- held pursuant to the Agreement between Contractor and City dated October 5, 1981, ("Agreement"). When Contractor deposits securities as a substitute for contract retentions, the Escrow Agent shall notify the District within ten (10) days of said deposit. The market value of said securities at the time of said substi- tution shall be at least equal to the cash amount required to be withheld as retention under the terms of the Agreement. The securities shall be made payable to Wells Fargo Bank, N.A. as Escrow Agent for Escrow No. 9652 and shall designate Contractor as the beneficial owner. Eligible securities for substitution may be bank certificates of deposit issued by Wells Fargo Bank, N.A. with a maturity of 180 days or less, or any other security defined in Section 16430 of the . California Government Code. 2. Contractor shall pay directly to Escrow Agent a fee for the expenses incurred by Escrow Agent in administering the escrow account, said amount and terms for payment to be determined by Escrow Agent. 3. City shall deposit with Escrow Agent 5% (percent) of each progress payment for work performed pursuant to the Agreement. When Contractor deposits securities, and upon receipt of securities as described under Section 1 above, Escrow Agent shall draw an escrow check and pay Contractor 100% (percent) of said retention so deposited by the City. In the event Contractor fails to deposit the required securities into the escrow account, Escrow Agent shall draw an escrow check for only the amount of difference (if any) between the amount required to be withheld as retention as indicated, and the value of any securities held by Escrow Agent. 4. Upon receipt of written notification from City certifying that the Agreement is final and complete; and the Contractor has complied with all requirements and procedures applicable to said Agreement, Escrow Agent shall release to Contractor all securities and monies on deposit less escrow fees and charges in the escrow account. The escrow shall be closed immediately upon disbursement of all monies and securities on deposit and payments of fees and charges. In the event securi- ties are released prior to maturity, a penalty may be assessed. 5. City shall promptly and in writing notify Escrow Agent of any dispute or default arising under or relating to the contractual performance by Contractor. Upon receipt of such notification, Escrow Agent shall immediately convert all securities on deposit in the escrow account to cash and shall distribute such cash in the following manner: City shall receive an amount equal to the contract earnings required to be withheld as retention. 1 Contractor shall receive all funds in exceSs of the amount disbursed to City less fees and charges. Escrow Agent may rely on the written notification from City and City and Contractor shall hold Escrow Agent harmless from Escrow Agent's release and disbursement of the securities and money as set forth above. 6. In witness whereof, the parties hereto have hereunto caused the presents to be duly executed by their proper officers first thereunto duly authorized the day and year set out on reverse side. GENERAL PROVISIONS TAXES - Escrow Agent is not to be concerned with any unpaid personal property sales tax or sales tax on equipment being solo unless otherwise specifically instructed herein. OTHER AGREEMENTS - Unless otherwise provided herein, Escrow Adent is not to be concerned with any conditional sales contract, lease contract or security aqreement that may affect the here- in referred to persona] property, and ]s not responsible ~or the delivery of'any papers other than described herein. Escrow Agent is not a party to. or bound by any aqreeme~t wnlch may De dePOSited under, evidenced by, or arise out of these instructions. AGENCY RESPONSIBILITY - Escrow Aqent is to make no examination of the property nor of the title thereto. Escrow Aqent acts as a depositary only and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of anv instrument ~ePosited with ]t hereunder, or with respect to form or execution of the same, or khe identity, authority, or right of any person executing or depositing the same. DEFAULTS - Escrow Agent shall not be required to take or De bound by notice of any default of any person, or to take any action with respect to such default involving any exgense or l~ability, unless notice in writing is given to the Escrow Aqent at the office above named, of such default by the undersigned or any of them, and unless it is indemnified in a manner satisfactory to it against such expense or liability. These Instructions shall not De subject to recision or modification except of receipt by Escrow Agent at the office above named of the written instructions of all of the parties hereto or their successors in interest. NOTICES - Escrow Agent shall be protected in acting upon any notice, request, waiver, consent, receipt or other paper or document believed by Escrow Agent to be signed by the proper party or parties. JUDGMENT - Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own willful misconduct, and Escrow Agent shall have no duties to anyone except those signing these instructions. COUNSEL - Escrow Agent may advise with legal counsel in the event of any dispute or question as to the construction of the foregoing instructions, or Escrow Adent's duties thereunder, and Escrow'Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of counsel. DISAGREEMENTS - In the event of any disagreement between the undersioned or any of them, and/or the person or persons named in the foregoing instructions, and/or an~ other person, resulting in adverse claims and demands being made in connection with or for any papers, money or property involved herein or affected hereby, Escrow Agent shall be entitled at its option to refuse to comply with any such claim or demand, so lonq as such disagreement shall continue, and in so doing Escrow Agent shall not be or become liable for damages or interest to the undersigned or any of them or to any person named in the foregoing instructions for its failure or refusal to comply with such conflicting or adverse demands; and Escrow Agent shall be en- titled to continue so to refrain and refuse so to act until: 1. the rights of the adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the money, papers, and property involved herein or affected hereby; and/or 2. all differences shall have been adjusted by agreement and Escrow Agent shall have been notified thereof in writing signed by all of the persons interested. 3. In the event of such disagreement, Escrow Agent in its discretion, may file a suit in interpleader for the purpose of having the respective rights of the claimants ad- judicated, and deposit with the court all documents and property held hereunder, and the Contractor agrees to pay all costs and counsel fees incurred by Escrow Agent in such action and said costs and fees be included in the judgment in any such action. FEES AND CHARGES - In the event that Escrow Agent performs any service not specifically pro- vided hereinabove, or that there is any assignment or attachment of any interest in the subject matter of this escrow or modification thereof, or that any controversy arises hereunder, or that Escrow Agent is made a party to, or intervenes in, any litigation pertaining to this escrow or the subject matter thereof, Escrow Agent shall be reasonably compensated therefor and reimbursed for all costs and expenses occasioned thereby. Escrow ~gent shall have a first lien on the property and papers held by it hereunder for such compensation and expenses, and the Contractor agrees to pay the same, and to indemnify Escrow Agent against any loss, liability or expense incurred in any act or thing done hereunder. CANCELLATION - In the event this escrow is cancelled, the Contractor will nevertheless pay the escrow fee plus all costs and expenses of Escrow Agent. Notwithstanding anything in these instructions to the contrary, Escrow Agent may, at his discretion, upon ten (10) days written notice to'~Contractor and City, resign from this escrow and shall be entitled to reim- bursement only for those costs and expenses incurred by Escrow Agent to the date of such re- .sigKation. Upon cancellation by the parties or resignation of the Escrow Agent, after deduct- ind Escrow Agent's fee and/or costs and expenses, the balance of funds and documents shall be returned to the parties who shall have deposited the same. SIGNATURES - These instructions may be executed in counterparts, each of which so executed shall be deemed as original, irrespective of the date of its execution and delivery, and said counterparts together shall constitute one and the same instrument. THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTOOD AND AGREED TO THE TER~S, PROVISIONS AND CONDITIONS CONTAINED HEREIN. W. R. Thomason Inc. BY: BY: ~,. R. Tnomason, President Eibert C. Lewey, Treasurer P.O. Box 2249 I~artlnez, CA 94553 :~15~ 229-2720 Dated City of Ukiah 203 South School Street Ukiah, CA 95482 (707) 462-2971 ATTEST: WELLS FARGO BANK, II.A. £scrow Officer